Defeat Tenant Tactics to Prolong Rent Reduction Orders
When you apply to restore the rent after getting hit with a rent cut for reduced services, tenants often try to delay or undermine your application. They'll do so by complaining of defective conditions that weren't listed in the original service reduction order. But you can defeat this stalling tactic by tenants. The Division of Housing and Community Renewal (DHCR) has ruled that the existence of defective conditions that weren't listed in the service reduction order doesn't bar a rent restoration. So the District Rent Administrator (DRA) deciding your rent restoration application shouldn't deny your application based on defects that weren't listed in the order.
Here's what you should do to avoid having your rent restoration denied based on defective conditions that weren't listed in the service reduction order.
Rent Restoration Basics
If a tenant experiences a decreased service in an individual apartment or in the building and is thinking about obtaining a rent reduction, the tenant needs to first contact you in writing. If the tenant feels that this didn't resolve the problem, the tenant is allowed to file a complaint with the DHCR. For an individual complaint a tenant may use an “Individual Tenant Statement of Complaint of Decrease in Services” [DHCR Form RA-81] form for complaints about conditions in the apartment. For complaints involving a decrease in building-wide services, a tenant or tenant representative may file a “Statement of Complaint of a Decrease in Building-Wide Services” [DHCR Form RA-84].
The tenant will then attach a copy of his letter to the owner or agent with proof of mailing or delivery to the correct form and file them with the DHCR not less than 10 days and no more than 60 days from the date the letter was written to the owner.
The DHCR then screens and dockets these applications and sends the tenant an acknowledgement with the complaint/docket number. A copy of the tenant's complaint is also sent at this time to the owner, and the owner has 45 days in which to respond (five days for vacate orders and fires). If the owner's answer is relevant to the rent reduction determination, the DHCR may send a copy to the tenant, who has 21 days from receiving the owner's answer to respond to the DHCR. But in the alternative, the DHCR may schedule an inspection.
If the evidence indicates that the owner failed to maintain required services, the DHCR will issue a written order that directs the owner to restore services and reduces the rent for the apartment. The order will stay in effect until the owner applies to the DHCR and receives a rent restoration order that finds that services have been restored. The DHCR may not issue an order concerning items that weren't contained in the tenant's letter to the owner.
After you've addressed the tenant's complaints and you file an application to restore the rent with the DHCR, the DHCR will send the tenant a copy of your application and give the tenant a chance to oppose it. If the tenant disputes your application (for example, by claiming that you haven't repaired all the defective conditions), the DHCR will send an inspector to the apartment. If the inspector finds that you've restored services, your application to restore the rent will be granted. If the inspector finds that you haven't restored the services, your application will be denied.
Tenant Stalls by Denying Access
When a rent-regulated tenant has filed a reduced service complaint and a rent reduction has been ordered, you'll need access to the tenant's apartment to investigate the complaint and make any needed repairs to get the rent restored. In some cases, a tenant will deny access or make the apartment unavailable in hopes of prolonging the rent reduction order as long as possible.
In this situation, you must follow the DHCR's no-access policy set out in Rent Stabilization Code Section 2523.4(d)(2). If a tenant denies access for repairs, you must send the tenant a letter to arrange an access date and proposing a specific date. You must send this letter by certified mail, return receipt requested, and mail it at least eight days before the access date you're proposing. If the tenant doesn't respond to the letter, you must send a second letter, again by certified mail, return receipt requested, specifying another access date. You must also mail this letter at least eight days before the proposed access date.
If the tenant doesn't respond to your second letter, state in your answer to the tenant's complaint (or in a letter to the DRA) that the tenant has denied you access to the apartment, preventing you from making the repair. Or check off Box C of the rent restoration application [Form RTP-19] to indicate that the tenant has “unreasonably refused” to permit you to restore the service. Include copies of the letters you sent and the certified mail return receipts as proof.
The DRA deciding the case will then schedule a special “no-access” inspection at which a DHCR inspector will be present and to which you can bring your repair workers. If the tenant provides access, you'll be able to investigate and make repairs, and avoid a rent cut or denial of your rent restoration application. If you're ready to make repairs and the tenant doesn't give you access, the DRA should dismiss the tenant's complaint or grant your rent restoration application.
In one case, after a rent-stabilized tenant complained of a reduction in services and the owner claimed that the tenant wouldn't permit access for repairs, the DRA then ordered a “no-access” inspection, and the tenant again refused access. So the DRA dismissed the tenant's complaint. The DHCR's inspector came to the tenant's apartment with the owner and the repair person ready to do the necessary repairs on the date scheduled for the no-access inspection. The tenant refused to allow repairs to be made on that date. As a result, the commissioner ruled that the DRA properly dismissed the complaint [Ferary: DHCR Adm. Rev. Docket No. XC410070R, September 2009].
New Defects Don't Matter
The problem arises when a tenant opposes your rent restoration application by complaining about defective conditions that weren't listed in the service reduction order. The DRA shouldn't deny your application based on these new defective conditions, even if the inspector confirms that they do exist. The DHCR has consistently ruled that the DRA shouldn't consider these new defects in deciding your application.
In other words, the scope of the rent restoration is limited to the tenant complaints in the original service reduction order. In one case, a tenant complained of a reduction in services due to a broken backyard fence. The DRA ruled for the tenant and reduced her rent. When the owner later applied for rent restoration based on the restoration of services, the tenant appealed, claiming that there was an ongoing vermin problem and that her backyard fence created a safety issue because trespassers could use the fence to gain access to her apartment. The DHCR ruled against the tenant. The tenant hadn't raised safety issues or any issue about vermin in her complaint. So there were no grounds to revoke the rent restoration [Barnell: DHCR Adm. Rev. Docket No. VD430047RT, July 2007].
In another case, a rent-stabilized tenant complained of a reduction in services based on mouse and roach infestation in his apartment. The DRA ruled for the tenant and reduced his rent. The owner later sought rent restoration, claiming that the condition had been cured. The DRA ruled for the owner and restored the tenant's rent. The tenant lost his appeal. The tenant claimed that the owner had exterminated only twice in the past eight months and that there remained problems with rats, mice, and bedbugs in the building. But the tenant didn't complain about rodents in the basement or about bedbugs in his initial filing. And the DHCR inspection of the apartment showed no evidence of mice or roaches in the glue trap under tenant's stove or elsewhere in the apartment [Malwich: DHCR Adm. Rev. Docket No. XC410013RT, August 2009].
Same Defect, Different Location
Sometimes tenants will complain about the same type of defect in a different location from the one listed in the service reduction order. Again, the new defect shouldn't bar your rent restoration application. The defective condition also must be in the same location as the one listed in the order to warrant a denial of your rent restoration application.
For example, in one case, tenants complained of a reduction in building-wide services. The DRA ruled for the tenants, finding that an elevator wasn't working. When the owner later was granted a rent restoration, the tenants appealed, claiming that a second elevator still wasn't working. They said their initial complaint was that both elevators were malfunctioning. The DHCR ruled against tenants. The DRA's rent reduction order was based on an inspector's finding that only the first elevator wasn't working. Because service to that elevator had been restored, the DRA properly restored the tenants' rents. [Jean/Laguerre: DHCR Adm. Rev. Docket Nos. WB610024RT, May 2008].
In another case in which the tenants appealed the DRA's granting of an owner's rent restoration application, the tenants pointed out new leaks in their appeal. The DRA had ruled for the owner based on findings that cracked plaster on the sixth-floor ceiling and walls, and water stains on the garage ceiling, had been repaired. The tenants appealed, claiming that there was still water intrusion. But the DHCR ruled for the owner. The owner's engineer and the DHCR's inspector found no water leak stains on the sixth-floor ceilings and walls or on the garage ceiling. Although the DHCR inspection report noted that there was a leak stain under the window of the bulkhead of one part of the building, this condition was different from those on which the rent reduction was based [Samson Mgmt. LLC/Various Tenants: DHCR Adm. Rev. Docket Nos. TD710028RO and TC710048RT, July 2005].
Defect Listed in Inspection Report but Not Order
What if the defective condition cited by the tenant was mentioned in the DHCR inspection report, but it wasn't a condition cited in the service reduction order? The DHCR has ruled that your rent restoration application shouldn't be denied based on a defective condition listed in an inspection report that wasn't also listed in the DRA's service reduction order.
In one case, a tenant complained of a reduction in services after her apartment was made uninhabitable by fire. The DRA ruled for the tenant and reduced her rent to $1 per month. The owner made repairs and applied for rent restoration. At the time, the DRA ruled against the owner because an inspection showed several defective conditions in the apartment. The owner appealed and won. The tenant hadn't complained about the conditions found in the inspector's report, and they had nothing to do with repairs made after the fire. The DHCR eventually ruled for the owner. The owner had restored the apartment after the fire to a habitable condition, the basis of the service reduction order. If tenant wanted a rent reduction because of other conditions, she would have had to file a new complaint based on a reduction in services [5K Enterprises: DHCR Adm. Rev. Docket No. ML710031RO, September 2000].
Submit Reply to Defeat Tenant's Claim
To avoid losing out on your rent restoration application based on new defects raised by a tenant in his answer to your application, be sure to compare the defects the tenant is raising to those listed in the service reduction order. If the tenant complains about any defects not mentioned in the service reduction order, submit a reply to the tenant's answer pointing this out. You should ask the DRA to disregard any defects that weren't in the service reduction order. You can cite one of the DHCR cases mentioned above in which the DHCR ruled that owners aren't required to restore services not listed in the service reduction order.
For example, say the DHCR reduces the rent of a tenant's apartment based on a roach problem. You apply to restore the rent, and the tenant submits an answer to your application arguing that your application should be denied because there are additional vermin in the apartment. Your reply might say something like this:
In his answer to the rent restoration application, the tenant claims that there are now rats and bedbugs in the building. The DRA should disregard this claim. This alleged defect wasn't the reason for the rent cut, which was based on a roach infestation. The DHCR has ruled that owners are not required to restore conditions not mentioned in the service reduction order to qualify for a rent restoration. See, for example, Malwich: DHCR Adm. Rev. Docket No. XC410013RT (8/21/09). Accordingly, this alleged new defect shouldn't be considered in deciding the instant application.
File Appeal if Necessary
If the DRA denies your rent restoration application based on a defective condition not listed in the service reduction order, appeal by filing a Petition for Administrative Review (PAR) within 35 days of the date of the DRA's order. In your PAR, point out that the DRA mistakenly denied your rent restoration application based on a defective condition not mentioned in the service reduction order. Cite one of the DHCR cases mentioned above in which the DHCR ruled that owners aren't required to restore services that aren't listed in the service reduction order. For example, assume the DRA denied your rent restoration application after finding that there was an additional bedbug problem in the building. The service reduction order was based only on a roach problem in the tenant's apartment. Your PAR might say something like this:
The DRA's order must be revoked. The DRA mistakenly denied the rent restoration application based on a defective condition not listed in the service reduction order. The service reduction order was based on a roach problem in the tenant's apartment. The DRA denied the rent restoration application based on an alleged bedbug problem in the building. The DHCR has ruled that owners aren't required to restore services not mentioned in the service reduction order to qualify for a rent restoration. See, for example, Malwich: DHCR Adm. Rev. Docket No. XC410013RT (8/21/09).
When dealing with stall tactics by problem tenants, be sure that you don't ignore new defective conditions a tenant complains about. Check into the tenant's claims and make any necessary repairs. Otherwise, the tenant may file a new service complaint based on the defective conditions—and get a new rent reduction order.